DUI Under the Influence of Tea
There was a recent case here in California, where a driver was arrested for driving under the influence of caffeine. There are also many cases where Coca Tea, which can test positive for cocaine, can cause you go be arrested for a Drug DUI. But in California, caselaw determines that there is another hot beverage which can make you test “under the influence” while driving – Kava Kava.
Kava Kava is a drink that is popular in the Islands of the South Pacific – including in Polynesian and Hawaiian culture, and in many Pacific Island native cultures. It is made from the root of the Kava plant, which is a type of pepper plant. It is sold over the counter online and in many pharmacies as a powdered capsule, or as a tea, for relaxation.
The Olive Case – DUI Under the Influence of Tea
Almost two decades ago, a fight between Kava and California’s DUI Laws took place, causing the appeals court to decide the issue. A man named Sione Olive was driving on Highway 101 to visit his aunt in Palo Alto. He was driving directly from his church, Shoreline Church in San Mateo, where he had been given kava tea during a religious function. It’s common for Kava Kava to be part of Polynesian rituals.
The prosecutors in San Mateo County said that his driving and performance for officer’s field sobriety tests showed that he was under the influence, due to the tea. Testing showed that he had no alcohol in his system. CHP Officer Dave Newton, however, “had the opinion that he was under the influence of alcohol or drugs,” he said, “based on his driving, his watery eyes, his sluggish movements and his failure of field sobriety tests.” He was given a breathalyzer, and a urine test, which tested negative for alcohol, but positive for Kava tea.
The case went to trial, and the jury deadlocked. They were unable to agree on a finding of guilt, and the case was declared a mistrial. The prosecutors decided to retry the case.
In December, 2000, the case was tried again, and Olive was found guilty. However, citing “a lack of evidence” from prosecutors to demonstrate that the herbal brew indeed caused Olive to drive erratically that morning, Judge Marta Diaz found that he had been wrongfully charged under a statute of the state vehicle code regarding driving under the influence of drugs.
“I cannot find that its application to this defendant is appropriate,” she said, granting a motion by defense attorney Hugo Borja to dismiss the case. After suggesting that Olive may not have understood the sobriety tests due to his limited English, the DUI Defense Lawyer Borja, had argued that his client did not consider himself impaired from drinking kava. In the absence of concrete legal wording on the subject, he added, the highway patrol should not be allowed to arrest motorists for driving under the influence of a substance that has not been adequately defined.
That year, the 26 year old Olive’s arrest for Kava tea was only the second of its kind ever in California. In October of the same year (2000), jurors had deadlocked on whether to acquit 47-year-old Taufui Piutau of San Bruno, who was also arrested for weaving on U.S. 101 after drinking kava.
The Definition of Substances that Make You Under the Influence
The state vehicle code defines a drug as “any substance or combination of substances … which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent or cautious man … would drive a similar vehicle under like conditions.”
Judge Marta Diaz, who had heard the second trial, apparently disagreed – saying in effect it was not up to officers and prosecutors to determine what substances impair a driver’s abilities. “The real issue here is not the stop,” she said, noting the officer did the correct thing to pull over the weaving vehicle.
Instead, she asked, “Is the application of the statute to this substance patently unfair? Would we be sitting here if the defendant said he had 23 cups of hot milk?”
The following year, on July 24, 2001, the appellate division of the Superior Court of San Mateo delivered the decision that appears below. It remanded the case back to court for a third time, and indicated that the laws did not have to name specific drugs, or even name Kava tea, but rather was sufficient to prosecute, as the law prohibiting drugs “conveys legally sufficient warning about the prohibited conduct” enough to have a jury determine whether or not the kava tea made it unsafe for the defendant to drive.
The DUI Under the Influence of Kava Tea Case: People v. Olive (2001)
Appellate Division, Superior Court, San Mateo
July 24, 2001.]
THE PEOPLE, Plaintiff and Appellant, v. SIONE OLIVE, Defendant and Respondent.
(Superior Court of San Mateo County, No. SM306891, Marta S. Diaz, Judge.)
(Opinion by Kopp, J., with Holm, P. J. and Pfeiffer, J., concurring.)
Hugo Borja, for Plaintiff and Appellant.
Rachel Holt, for Defendant and Respondent. [92 Cal. App. 4th Supp. 23]
This appeal involves a legal issue of first impression and continuing public interest in California.
Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at 1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers. Requested to walk to the officers’ vehicle, respondent displayed difficulty in maintaining his balance. His movements were deliberate, slow and sluggish; his eyes were red and watery. He denied drinking any alcohol but stated he had consumed approximately 23 cups of kava. Asked if he felt any effect from the kava, respondent replied that he felt “slow and heavy.” Immediately thereafter, physical sobriety tests were administered to the respondent. His performance was flawed. A preliminary alcohol screening test showed 0.00% alcohol in his blood. One of the officers then arrested respondent after forming the opinion that respondent was under the influence of alcohol or a drug and his ability to operate a motor vehicle safely was impaired.
Appellant commenced criminal action against respondent on June 19, 2000, accusing him of violating Vehicle Code section 23152, subdivision (a). fn. 1 Respondent moved to dismiss the charge, claiming unconstitutionality of section 23152, subdivision (a) as applied to him in the circumstances of the case. He alleged the statute was “overly broad and vague” and its [92 Cal. App. 4th Supp. 24] application on the facts of the case denied him “due process of law.” Respondent further contended section 23152, subdivision (a) provides no notice that driving under the influence of kava is a crime and that neither by statute nor case law is kava deemed a drug under section 23152, subdivision (a).
Respondent also moved pursuant to Penal Code section 1538.5 to suppress evidence from a post arrest urine test. Respondent’s motion to suppress evidence was considered first by the trial court at a hearing in which the arresting officer testified for appellant and was cross-examined by respondent. The respondent neither produced any evidence nor exercised responsibility for sustaining the burden of his motion to dismiss the case. In fact, appellant’s evidentiary presentation anent the motion to suppress evidence and the testimonial hearing thereon were subsumed by the court’s consideration of the motion to dismiss for unconstitutionality. The trial court denied the motion to suppress evidence and, after considering legal argument in which the court requested appellant to proceed first, ordered dismissal of the case, declaring it was doing so: “in this case, under these circumstances, based on the evidence in this particular record.”
[1a] Appellant appeals, claiming dismissal occurred pursuant to Penal Code section 1385 “in furtherance of justice” and that the trial court abused its discretion thereunder. We reverse, not because Penal Code section 1385’s discretionary power was abused (Penal Code section 1385 was not the basis of dismissal), but because (1) respondent, not appellant, bears the burden in his due process attack of showing Vehicle Code section 23152, subdivision (a)’s unconstitutionality as applied and failed utterly to do so, and (2) such showing as was adduced in the motion to suppress hearing persuades us the statute is constitutional as applied to respondent. As noted in People v. Archerd (1970) 3 Cal. 3d 615, 639, in which the defendant raised pre-indictment delay as a violation of his due process right to a speedy trial, an accused must demonstrate “prejudice or improper motive by the prosecution . . . [and thereafter] the burden shifts to the people to show that the pre-indictment delay was the result of a valid police purpose.” Similarly, respondent, not appellant, was first obliged procedurally to establish, by experts or other evidentiary sources, unconstitutional application, after which appellant could respond.
Since no facts were advanced by respondent concerning unconstitutional application of section 23152, subdivision (a) to him, he rests his unconstitutionality argument upon the lack of any judicial decision and omission of a literal statutory statement that kava constitutes a “drug” within the meaning of section 23152, subdivision (a). We could remand to the trial court for [92 Cal. App. 4th Supp. 25] failure to compel respondent’s execution of his burden to show unconstitutionality of section 23152, subdivision (a) as applied.  We do not do so because interpretation of a statute and the determination of its constitutionality are questions of law, absent any factual showing by an accused. As an appellate court, we apply a de novo standard of review. (People v. Health Laboratories of North America, Inc. (2001) 87 Cal. App. 4th 442, 445.)
 All presumptions favor the validity of a statute, and statutes “must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.” (Smith v. Peterson (1955) 131 Cal. App. 2d 241, 246.) A criminal statute satisfies due process so long as it is “definite enough to provide a standard of conduct for those whose activities are proscribed [citations]” and “provide[s] definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. [Citations.]” (People v. Heitzman (1994) 9 Cal. 4th 189, 199-200.) A statute must give fair warning and sufficiently inform ordinary people with average intelligence of the acts it declares prohibited and punishable. (Burg v. Municipal Court (1983) 35 Cal. 3d 257, 270-272.) The defendant in Burg challenged the then existing 0.10 percent blood-alcohol standard for conviction of a section 23152, subdivision (b) violation with a vagueness theory that it was impossible “for a person to determine by means of his senses whether his blood-alcohol level is a ‘legal’ 0.09 percent or an ‘illegal’ 0.10 percent.” (Burg, at p. 270) The court rejected defendant’s curious theory and commented that consumption of a quantity of alcohol “should notify a person of ordinary intelligence he is in jeopardy of violating the statute.” (Id. at p. 271)
[1b] Respondent herein contends that without inclusion of kava, in haec verba, section 23152, subdivision (a) is void for vagueness. Actual notice of each drug constituting a basis for prosecution under section 23152, subdivision (a) is not required if a person is reasonably made aware of the proscribed conduct, namely, impaired driving ability resulting from ingestion of some substance. “It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. It is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited.” (Smith v. Peterson, supra, “131 Cal.App.2d at p. 246.)
In People v. Buese (1963) 220 Cal. App. 2d 802, 806-807, the court held not void for vagueness a statute barring transportation of “drugs” into a county jail. The drug in issue was a hypnotic. The court observed: “‘Drugs’ is the general word used in association with ‘narcotics’ and ‘alcoholic beverages.’ These terms have a number of things in common, [92 Cal. App. 4th Supp. 26] included among which is the fact that they are taken internally and when so taken they affect the brain, and particularly that function of the brain controlling judgment. By use of the word ‘drugs’ it is reasonable to assume the Legislature intended to include those drugs having similar characteristics. So interpreted hypnotic drugs are clearly within a much larger group possessing such similarity.” (Id. at p. 807).
As used in section 23152, “drug” is defined by section 312 which declares: “The term ‘drug’ means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”
Omission of kava by its name does not render section 23152, subdivision (a) unconstitutionally vague as applied. (People v. Avila (2000) 80 Cal. App. 4th 791, 802-803; People v. Keith (1960) 184 Cal. App. 2d Supp. 884.) In Avila, a Penal Code section 286, subdivision (i) action, the Court of Appeals iterated: “A statute provides adequate notice when its ‘language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'” (People v. Avila, supra, 80 Cal.App.4th at pp. 802-803, italics added.) No actual substance was (or is) identified in Penal Code section 286, subdivision (i). There, the court held the purpose of the allegedly vague language in that statute was “to define the crime in terms that clearly warn against the commission of sodomy on a victim whose ability to resist, . . . is prevented by substances having anesthetic or intoxicating effects . . . .” (Avila, at p. 798.)
Section 23152, subdivision (a) provides that vehicle operation while under the influence of a substance other than alcohol which could “affect the nervous system, brain, or muscles” (Veh. Code, § 312) in such a way as to impair a person’s ability to drive as an ordinarily prudent and cautious man using reasonable care would drive a vehicle under like conditions is a crime. It describes conduct; it does not purport to identify particular drugs, and it is not required constitutionally in this case to do so. (Testimony offered by appellant at the hearing on the motion to suppress evidence demonstrates respondent was himself aware of kava’s effects the very night of his arrest; he felt “slow and heavy”. fn. 2
Because respondent failed to sustain the burden of proof created by his due process motion to dismiss for unconstitutionality as applied and because [92 Cal. App. 4th Supp. 27] section 23152, subdivision (a) in conjunction with section 312 conveys legally sufficient warning about the prohibited conduct, the judgment dismissing the criminal action against respondent is reversed. The case is remanded for trial.
Holm, P. J. and Pfeiffer, J. concurred.
FN 1. All statutory references are to the Vehicle Code unless otherwise stated.
FN 2. The effects upon his motoring ability were plainly observed by the arresting officer, who also observed respondent’s flawed performance on physical sobriety tests.
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